Judges: Brennan
Filed: Oct. 18, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2477 MARIO LOJA, Plaintiff-Appellant, v. MAIN STREET ACQUISITION CORPORATION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-CV-01251 — Milton I. Shadur, Judge. _ ARGUED SEPTEMBER 7, 2018 — DECIDED OCTOBER 18, 2018 _ Before WOOD, Chief Judge, and ROVNER and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. Mario Loja sued Main Street
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2477 MARIO LOJA, Plaintiff-Appellant, v. MAIN STREET ACQUISITION CORPORATION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-CV-01251 — Milton I. Shadur, Judge. _ ARGUED SEPTEMBER 7, 2018 — DECIDED OCTOBER 18, 2018 _ Before WOOD, Chief Judge, and ROVNER and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. Mario Loja sued Main Street A..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2477
MARIO LOJA,
Plaintiff‐Appellant,
v.
MAIN STREET ACQUISITION CORPORATION, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17‐CV‐01251 — Milton I. Shadur, Judge.
____________________
ARGUED SEPTEMBER 7, 2018 — DECIDED OCTOBER 18, 2018
____________________
Before WOOD, Chief Judge, and ROVNER and BRENNAN,
Circuit Judges.
BRENNAN, Circuit Judge. Mario Loja sued Main Street
Acquisition Corporation and law firm Shindler & Joyce (col‐
lectively, “Main Street”) for violations of the Fair Debt Collec‐
tion Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the
Illinois Collection Agency Act, 225 ILL. COMP. STAT. 425/1 et
seq. The district court dismissed the action, ruling that Loja
was not a qualifying “consumer” under the language of the
2 No. 17‐2477
FDCPA. Loja appeals, contending he is a qualifying consumer
and that his attorney properly preserved his right to amend
the complaint. We agree that based on the text of the FDCPA
and circuit precedent Loja is a qualifying consumer for
purposes of the FDCPA. We reverse and remand for further
proceedings and conclude Loja should be given leave to
amend his complaint should he desire to do so.
I. Background
This case comes to us from a dismissal on the pleadings
pursuant to FED. R. CIV. P. 12(b)(6), so we recount the facts as
alleged in the complaint and the documents described in it,
giving Loja the benefit of all reasonable inferences in his favor.
Sloan v. Am. Brain Tumor Assʹn, 901 F.3d 891, 893 (7th Cir.
2018).
In 2007, someone opened a Visa credit card with
Washington Mutual Finance under the name “Mario Loja.”
After the card fell into default, the bank charged off the
$4,018.07 debt and sold it to defendant‐appellee Main Street
Acquisition Corporation, a Nevada corporation registered as
a collection agency in Illinois. Main Street then retained
defendant‐appellee Shindler & Joyce, a law firm, to file a
collection action in DuPage County, Illinois small claims court
in 2016.
Enter plaintiff‐appellant Mario Loja. From the current
state of the pleadings, Loja’s relationship to the debt at issue
is unclear. Regardless, Loja maintains he never opened an
account with Washington Mutual and never accrued any
credit card debt there. Believing that Loja owed the debt,
Main Street named him in the small claims action and served
him with the complaint. Loja appeared in court to insist the
No. 17‐2477 3
debt was not his, and that in any event the collection action
was time‐barred under Illinois law. After a bench trial, the
small claims court dismissed the collection case with preju‐
dice in favor of Loja.1
Loja then filed this action seeking damages under the
FDCPA and the Illinois Collection Agency Act. Main Street
moved to dismiss, contending that Loja had failed to allege a
qualifying debt, and therefore he could not sue under the
FDCPA. Main Street argued that Loja failed to sufficiently
allege that the credit card debt was “for personal, family, or
household purchases,” as required under § 1692a(5). Loja
responded that he had alleged the debt was on a personal
credit card, which was sufficient to meet this standard. Loja
added that it would be impossible for him to allege additional
details because he did not generate the underlying transac‐
tions.
At the initial hearing on the motion to dismiss, the district
court indicated it was likely to deny the motion on the basis
of § 1692a(5). At the second hearing, however, the district
court did not discuss the § 1692a(5) argument, and instead
granted the motion to dismiss on the alternate ground that
Loja did not meet the definition of a “consumer” under
§ 1692a(3) of the FDCPA. Raising the issue sua sponte, the dis‐
trict court interpreted the phrase “obligated or allegedly obli‐
gated to pay any debt” to require that a plaintiff allege he ac‐
tually owed a debt. Because Loja claimed he did not owe any
1 The DuPage County small claims court final judgment does not list
the grounds on which Loja defeated the collection action, whether the stat‐
ute of limitations precluded the claim, whether Loja did not owe the debt,
or otherwise.
4 No. 17‐2477
debt, the district court concluded Loja did not meet the statu‐
tory standing requirements. Loja raised the possibility of
amending the complaint to rectify the infirmity, but the court
informed him that so long as Loja alleged he did not owe the
debt, any amendment would be futile. This appeal followed.
II. Interpretation of 15 U.S.C. § 1692a(3)
We review appeals from a motion to dismiss de novo.
Johnson v. Winstead, 900 F.3d 428, 434 (7th Cir. 2018). Loja
argues that the text of the FDCPA includes mistakenly
dunned individuals as qualifying consumers, so the dismissal
of his case should be reversed.
When interpreting a statute, we begin with the text.
Hughey v. United States, 495 U.S. 411, 415 (1990); Jackson v. Blitt
& Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016). A word or
phrase in a statute should not be interpreted in a vacuum;
rather, “the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” Sturgeon v. Frost, 136 S.Ct. 1061, 1070 (2016) (citing
Roberts v. Sea‐Land Services, Inc., 566 U.S. 93, 101 (2012)); Wells
Fargo Bank, Nat. Assʹn v. Lake of the Torches Econ. Dev. Corp.,
658 F.3d 684, 694 (7th Cir. 2011).
The FDCPA defines “consumer” as “any natural person
obligated or allegedly obligated to pay any debt.” 15 U.S.C.
§ 1692a(3). The disjunctive “or” creates two categories of per‐
sons that qualify as consumers under the FDCPA. ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW 116 (2012) (“Under
the conjunctive/disjunctive canon, and combines items while
or creates alternatives.”) (emphases in original). A person
who is “allegedly obligated to pay” is therefore covered by
the statute, just as is a person who is “obligated” to pay, to
No. 17‐2477 5
avoid rendering the phrase “or allegedly obligated” superflu‐
ous. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009)
(describing the canon against superfluity as “one of the most
basic interpretive canons”); Rubin v. Islamic Rep. of Iran, 830
F.3d 470, 484 (7th Cir. 2016) (similar).
Significantly, the text of 15 U.S.C. § 1692a(3) does not limit
“alleged” to obligations alleged by the consumer. The word
applies generally and consequently includes obligations
alleged by a debt collector as well. We therefore hold that the
definition of “consumer” under the FDCPA includes consum‐
ers who have been alleged by debt collectors to owe debts that
the consumers themselves contend they do not owe. This
interpretation conforms to the structure and text of the rest of
the FDCPA, which focuses primarily on the conduct of debt
collectors, not consumers. Keele v. Wexler, 149 F.3d 589, 595
(7th Cir. 1998) (noting that the language of the FDCPA “fo‐
cuses primarily, if not exclusively on the conduct of debt col‐
lectors, not debtors”).
This reading of the FDCPA comports with precedent from
our own circuit and the Eighth Circuit. In Keele, we held that
when evaluating claims under the FDCPA, “[w]e must focus
on the debt collector’s misconduct, not whether the debt is
valid …” Id. at 594. In Schlosser v. Fairbanks Capital Corp., 323
F.3d 534 (7th Cir. 2003), when interpreting near‐identical lan‐
guage in the definition of “debt” under 15 U.S.C. § 1692a(5),
we observed that the phrase “obligation or alleged obliga‐
tion” serves to “extend[] the reach of the [FDCPA] to collec‐
tion activities without regard to whether the debt sought to
be collected is actually owed.” Id. at 538. The Eighth Circuit
reached the same conclusion when interpreting § 1692a(3) as
we do here. See Dunham v. Portfolio Recovery Associates, LLC,
6 No. 17‐2477
663 F.3d 997, 1002 (8th Cir. 2011) (“Simply put, a mistaken
allegation is an allegation nonetheless. Thus, we read
§ 1692a(3) to include individuals who are mistakenly dunned
by debt collectors.”).
Alleging that Loja owed the debt, Main Street tried the
case to the bench in small claims court, but failed to prove its
claim. This allegation by Main Street sufficiently qualifies
Loja as a consumer under the FDCPA.
III. Leave to Amend
We turn to Loja’s ability to amend his initial complaint.
Main Street contends that Loja, by failing to raise the issue in
his initial brief, has waived it. But in a reply brief, an appellant
generally may respond to arguments raised for the first time
in the appellee’s brief. See, e.g., United States v. Feinberg, 89 F.3d
333, 340–41 (7th Cir. 1996) (“[T]he scope of the reply brief
must be limited to addressing the arguments raised by the
appellee.”); United States v. Powers, 885 F.3d 728, 732 (D.C. Cir.
2018) (“But an appellant generally may, in a reply brief,
‘respond to arguments raised for the first time in the appel‐
lee’s brief.’”) (quoting CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3974.3 (4th ed. 2017)). Main Street
raised the issue of amendment in its response brief and Loja
replied. Accordingly, the issue is not waived.
Main Street asserts that at the second hearing before the
district court, Loja did not argue for leave to amend. Loja’s
counsel did raise the issue of amendment twice at the second
hearing, but was informed by the court that amendment was
No. 17‐2477 7
futile given the court’s interpretation of the FDCPA.2 District
courts may deny leave to amend when such amendment
would be futile. See, e.g., Gonzalez‐Koeneke v. West, 791 F.3d
801, 807 (7th Cir. 2015) (“District courts, nevertheless, ‘have
broad discretion to deny leave to amend where … the amend‐
ment would be futile.’”) (quoting Arreola v. Godinez, 546 F.3d
788, 796 (7th Cir. 2008)). But absent such a circumstance, the
liberal amendment standard of FED. R. CIV. P. 15(a)(2)
establishes a “presumption in favor of giving plaintiffs at least
one opportunity to amend … .” Runnion ex rel. Runnion v. Girl
Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 518 (7th
Cir. 2015) (citing Luevano v. Wal‐Mart Stores, Inc., 722 F.3d
1014, 1024 (7th Cir. 2013)).
Loja’s counsel did not neglect the issue at the hearing
stage. Rather, recognizing the court had ruled against his cli‐
ent, he preserved for the record that he would have sought
leave to amend had the court not pronounced it futile.
Because our interpretation of the FDCPA negates this futility,
we see no difficulty in granting Loja leave to amend the com‐
plaint, should he request it.
In the briefs and at oral argument the parties’ counsel dis‐
cussed the sufficiency of the pleadings with regard to the
definition of consumer debt under § 1692a(5) of the FDCPA.
2 At the May 21, 2017 hearing, Loja’s counsel asked, “But just to clarify
for the record, your Honor, it seems to me based on your ruling that we
could not amend to cure the defects that you just mentioned, correct?”
“Yes.” Hr’g on Mot. to Dismiss 12–13, ECF No. 19. Loja’s counsel later
clarified his question by asking, “So leave to amend, is it granted or de‐
nied, your Honor?” The district court did not reply directly. Hr’g on Mot.
to Dismiss 15, ECF No. 19.
8 No. 17‐2477
Given our rulings, and the possibility that Loja will amend his
complaint, at this time we decline to rule on the sufficiency of
the pleadings. We do note that the district court will be
guided by the standards set forth in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and any review of the pleadings may be
informed by the approaches other circuits have taken on this
issue. See, e.g., Bridge v. Ocwen Federal Bank, FSB, 681 F.3d 355
(6th Cir. 2012); Dunham, 663 F.3d 997; Garcia v. Jenkins Babb,
L.L.P., 569 Fed.Appx. 274 (5th Cir. 2014) (per curiam);
Boosahda v. Providence Dane LLC, 462 Fed.Appx. 331 (4th Cir.
2012) (per curiam).
For these reasons, we REVERSE the motion to dismiss and
REMAND for further proceedings consistent with this opinion.